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SJC-12881.
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The State of Jacqueline and Kendall, the MassHealth.
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So first we have Ms. Fine.
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You need to turn on your mic.
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There you go.
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Good morning, your honors.
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(indistinct)
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(laughs)
How I wish it were true.
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(laughs)
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Good morning, your honors and may you please record.
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I'm very sorry.
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What's going on?
Can you hear me?
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I'm sorry, we can't.
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There's a bit of reverb from the last thing.
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(indistinct)
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(laughs)
Right.
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So, I think if you plow, let's -
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Hey, can you hear now?
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Right, let's do this.
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Ms. Canary, if you could give Ms. Fine 10 more new minutes.
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Oh, thank you.
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Can you hear me now?
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We can, and you may proceed now.
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I had forgotten to turn off this subject website.
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Good morning, your honors.
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My name is Meredith Fine.
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I represent the estate of Jacqueline and Kendall.
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I've donated some of my time
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to Attorney Patricia Keane Martin, on behalf of the Amechi.
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If the court has specific questions about MassHealth,
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I'll do my best to answer them,
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but you might be better served saving them for the expert.
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There are two big problems with giving MassHealth.
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Unlimited time to file claims against an estate.
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One problem is a title problem,
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and the other is a problem
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with personal representatives liability.
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The title problem is this,
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if there is real estate in an estate,
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the title passes to the heirs immediately
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upon the decedent's death.
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But the estate retains an interest in that real estate
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in order to pay claims and estate expenses.
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So as long as the estate is open,
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the estate has an interest in the real estate.
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And so if the estate is never closed,
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that interest in the real estate is never extinguished.
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That's problem number one.
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Problem number two, is that personal representatives
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have personal liability if they misspend a state asset.
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And, MassHealth can claw back benefits
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that have already been distributed
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to the heirs and devisees.
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So council, may I ask you a question?
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Is your position then that there has to
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be a deadline because otherwise,
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if we adopt the position of MassHealth,
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we're going to eliminate the statute of limitations
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or the statute of repose,
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and these things will be open forever,
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and there'll be no closure or certainty.
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Exactly.
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The legislature weighed these two issues.
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They gave MassHealth extra time,
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but they put in a statute of repose to protect,
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to clear titles and to protect personal representative.
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20 years from now, MassHealth could find
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an unpaid claim in its file
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and try to claw back what's been distributed already
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and try to bring in the personal representative,
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10-20 years later.
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Who would serve as a personal representative
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under those circumstances?
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And you don't even know there might be a mess in play.
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So this applies to anybody serving
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as a personal representative.
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MassHealth makes three main arguments
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that I'd like to address.
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One is about notice.
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If somebody is a resident of a nursing home
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and receiving benefits and they die,
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the nursing home notifies MassHealth of the death.
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In the case of Ms. Kendall, she was never in a nursing home.
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She received all of her care in community settings.
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And we never had to open probate in the end
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and she died intestate without a will.
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So MassHealth concern here is,
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how does it get notice when somebody
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is not in a nursing home
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and never needs to go to the probate court?
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Well, on the ground,
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MassHealth already has plenty of access to that kind
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of information.
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First of all, MassHealth beneficiaries
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have to fill out an annual eligibility claim.
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MassHealth has access to the social security
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and death index.
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And MassHealth already has two more years
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than any other creditor.
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The second issue that MassHealth brings up-
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Hey, can I ask a question about,
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so I understand the need for a statute of limitations
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or a statute of repose.
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I'm trying to understand whether
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there's a possibility of gaming the system.
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Because all of us are paying for that free care
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in the nursing homes and other things.
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So, tell me how we protect against the clever lawyer
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like you, who says wait three years
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and you get to have your cake and eat it too.
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So how is the state protected against that?
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'Cause I'd like to make sure I understand we're dealing,
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that you can't prevent us from getting
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that money if we're entitled to it.
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First of all, the reporter's notes address that concern.
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The reporter's notes to section 3803,
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say that the legislature considered this possibility
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that people would kind of squat in these houses until
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the three years were up.
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And the legislature decided that it's up to creditors
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to pursue their claims.
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Second of all, you'll have to look at the population that-
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So, tell me MassHealth can protect itself.
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If I have an attentive state government,
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they can prevent you from using this three year rule.
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Meaning they can force the issue.
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MassHealth -
MassHealth.
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Go ahead.
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Tell me how MassHealth protects us.
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MassHealth has the ability to open an estate
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as any credited does.
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So as long as they know the person has died,
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they can open an estate and force the issue
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so that clever lawyers like you can't prevent us
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from recouping the cost of the nursing home.
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Is that right?
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That's exactly right.
Okay.
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And on the ground, you need to look at the population
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that we're talking about here.
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Many of these houses stay in people's families
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for generations.
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When the beneficiary dies, it just goes to their kids.
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The kids stay in the house.
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These are not folks who have clever lawyers
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like me on their speed dial.
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And again, I would point to the reporters notes
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that the legislature weighed this risk,
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and offset this risk in court
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by giving MassHealth extra time.
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Now, the estate's problem is that there is nobody
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with the authority to pay this claim.
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The legislature.
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Can I keep speaking?
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Mike?
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I wanna make sure attorney Kane Martin can speak.
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You still have three and a half minutes or so.
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Okay.
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Well I had given her five minutes of my time.
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So, I really wanna to make sure she can still speak right.
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We manipulated that into the timer.
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Yeah, right.
Okay.
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So why would the legislature create a system where on the
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one hand MassHealth has infinite time to father claim.
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And on the other hand, there's nobody to pay the claim.
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Why would the legislature creates such
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a inconsistent system?
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Well, they didn't create an inconsistent system.
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The legislature took 20 years.
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The mass probate code was considered for 20 years.
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MassHealth had plenty of time.
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Plenty of input into that process.
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There've been two amendments since the probate code went
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into effect in 2012.
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One set of amendments emphasized how limited the role
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of the personal representative is
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in Leighton Limited Test Disease.
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And the second set of amendments came
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from MassHealth itself and do not address this question.
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MassHealth brought forward its amendments in 2015.
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By 2015, at least one other state, Nebraska
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had applied this same language to Medicaid claims in 2012.
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So MassHealth had plenty of input
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into the probate code.
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MassHealth was aware or should have been aware
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that other States were applying this to Medicaid plans.
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MassHealth put in its own amendments
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and did not address this issue.
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Now, this year-
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Ms. Fine?
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This time, couldn't the answer be that they believed 803 AF
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provided it and that the concern is that wealthy people
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can go to a good attorney and be able to preserve their
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home and everybody else has to pay for the Nerf nursing home
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because they could afford a good lawyer
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to preserve their home.
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And they didn't think they had the problem 'cause
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they had 803 F.
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Thank you for the opportunity to address 803 F.
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MassHealth looks at 803 F as an escape hatch,
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and 803 F is not an escape hatch.
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It's part of the connective tissue that connects
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the probate code to the MassHealth statute when 118 E.
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And what 803 F does, that's where MassHealth
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actually gets the extra time.
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There's nothing in the mass probate code
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and there's nothing in the MassHealth statute
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that exempts MassHealth from the statute of repose.
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What 803 F does, is give by referring to section
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118 E, section 32, of the MassHealth statute.
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There's a section in there that says that MassHealth can
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open probate, get us a special administrator appointed,
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and that administrator is not bound by the date of death.
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Now, first of all, the special administrator
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is just a different flavor of personal representative.
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But there's still a personal representative.
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There's nothing exempting as special administrator from the
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duties and obligations they cover any personal ministry.
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But second of all, that section says
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that the personal administrator is not tied
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to the date of death, except for the statute of repose,
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the mass probate code governs every single thing
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about a state.
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So you would just choose to simplify.
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You would say 803 F is not an exception to the three years,
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but it's an exception to the one year because
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of the position that MassHealth is in.
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That's exactly right.
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If the legislature had intended to exempt MassHealth from
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the statute of repose, it had 20 years to say so,
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and it didn't.
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The legislature knew perfectly well,
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how to exempt MassHealth or how
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to give MassHealth special treatment.
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The legislature balanced, competing policy interest here.
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They did it with a lot of input, with a lot of time.
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And at some point, estates need to close and personal
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00:11:49.620 --> 00:11:53.870 line:15%
representatives need to be relieved of liability and titles
238
00:11:53.870 --> 00:11:55.480 line:15%
need to be clear.
239
00:11:55.480 --> 00:11:59.720 line:15%
And there's no reason for any court to impute language into
240
00:11:59.720 --> 00:12:03.250 line:15%
the probate code to solve a problem that doesn't exist
241
00:12:03.250 --> 00:12:07.240 line:15%
There's no reason to disturb how the legislature
242
00:12:07.240 --> 00:12:10.380 line:15%
has balanced the different policy interests here.
243
00:12:10.380 --> 00:12:12.180 line:15%
Any further questions of Ms. Fine.
244
00:12:13.150 --> 00:12:14.410 line:15%
Thank you, miss Fine.
245
00:12:14.410 --> 00:12:15.350 line:15%
Thank you.
246
00:12:15.350 --> 00:12:16.800 line:15%
Ms. Keane Martin, please.
247
00:12:19.820 --> 00:12:21.233 line:15%
We have to unmute first.
248
00:12:25.790 --> 00:12:26.893 line:15%
I can't hear her.
249
00:12:27.870 --> 00:12:29.025 line:15%
Unmute
250
00:12:29.025 --> 00:12:31.442 line:15%
(indistinct)
251
00:12:32.860 --> 00:12:33.693 line:15%
Nope.
252
00:12:33.693 --> 00:12:34.620 line:15%
No you're not.
(chuckling)
253
00:12:34.620 --> 00:12:36.120 line:15%
I'm sorry. Ms. Chemo.
254
00:12:36.120 --> 00:12:37.920 line:15%
It might be on our end because you're,
255
00:12:37.920 --> 00:12:41.633 line:15%
not showing as being muted, but we can't hear you.
256
00:12:44.811 --> 00:12:46.050 line:15%
Ooh
257
00:12:46.050 --> 00:12:46.883 line:15%
No.
258
00:12:48.490 --> 00:12:51.023 line:15%
Mr. Kenilis, Is Jeff available?
259
00:12:52.740 --> 00:12:54.327 line:15%
Oh, I'll check Justice Casiano
260
00:12:54.327 --> 00:12:57.700 line:15%
but Attorney Keane Martin can do as well.
261
00:12:57.700 --> 00:12:59.930 line:15%
My guess is that it's on her end because we tested
262
00:12:59.930 --> 00:13:01.030 line:15%
all of this last week.
263
00:13:02.070 --> 00:13:03.100 line:15%
She's gotta to try a different way
264
00:13:03.100 --> 00:13:05.100 line:15%
of getting her audio going.
265
00:13:05.100 --> 00:13:06.690 line:15%
There there was alternative as well.
266
00:13:06.690 --> 00:13:11.690 line:15%
She can dial in to a phone number,
267
00:13:12.954 --> 00:13:14.580 line:15%
that she has actually.
268
00:13:14.580 --> 00:13:18.040 line:15%
She put has headphones on and let's see if this works.
269
00:13:18.040 --> 00:13:19.070 line:15%
(indistinct)
270
00:13:19.070 --> 00:13:20.310 line:15%
We cannot still hear you.
271
00:13:20.310 --> 00:13:24.330 line:15%
Ms. Keane Martin, perhaps if you could dial in
272
00:13:24.330 --> 00:13:25.623 line:15%
on the telephone line?
273
00:13:27.620 --> 00:13:28.453 line:15%
Can you hear us?
274
00:13:29.400 --> 00:13:30.233 line:15%
She can.
275
00:13:30.233 --> 00:13:31.066 line:15%
she's responding to us.
276
00:13:31.066 --> 00:13:32.623 line:15%
I assume you can hear us.
277
00:13:33.700 --> 00:13:34.900 line:15%
And she's not in, right?
278
00:13:42.360 --> 00:13:44.777 line:15%
(indistinct)
279
00:14:03.129 --> 00:14:07.046 line:15%
We're still not unable to hear you, Ms. Martin.
280
00:14:14.966 --> 00:14:17.383 line:15%
(indistinct)
281
00:15:37.365 --> 00:15:38.198 line:15%
We're set.
282
00:15:38.198 --> 00:15:40.390 line:15%
Uhuh!
This is absolutely terrific.
283
00:15:40.390 --> 00:15:43.780 line:15%
Miss. Keane, I think we can get you right now.
284
00:15:43.780 --> 00:15:44.613 line:15%
Can you hear us?
285
00:15:48.330 --> 00:15:49.163 line:15%
I can hear.
286
00:15:51.152 --> 00:15:51.985 line:15%
Can you hear me?
287
00:15:51.985 --> 00:15:53.437 line:15%
Yeah.
We hear.
288
00:15:53.437 --> 00:15:55.455 line:15%
You hear me say, this is horrific?
289
00:15:55.455 --> 00:15:59.473 line:15%
(laughing) We did but we understand your frustration
290
00:15:59.473 --> 00:16:02.050 line:15%
and I'm gonna to tell you, just take a deep breath
291
00:16:02.050 --> 00:16:02.883 line:15%
and don't worry about it.
292
00:16:02.883 --> 00:16:03.716 line:15%
Okay?
293
00:16:03.716 --> 00:16:04.549 line:15%
Alright.
(laughing) Alright.
294
00:16:04.549 --> 00:16:05.382 line:15%
Thank you, your honor.
295
00:16:05.382 --> 00:16:07.710 line:15%
You're welcome.
Alright.
296
00:16:07.710 --> 00:16:09.400 line:15%
Well, we we'll start again in-
297
00:16:09.400 --> 00:16:10.850 line:15%
We'll start again at five minutes
298
00:16:10.850 --> 00:16:12.850 line:15%
and no apologies necessary.
299
00:16:12.850 --> 00:16:13.790 line:15%
Can we give it-
300
00:16:13.790 --> 00:16:16.370 line:15%
I appreciate your patience and the Clark
301
00:16:16.370 --> 00:16:18.260 line:15%
has been simply phenomenal.
302
00:16:18.260 --> 00:16:20.470 line:15%
I can't even give him enough credit
303
00:16:20.470 --> 00:16:22.830 line:15%
for all the patience he has had.
304
00:16:22.830 --> 00:16:23.820 line:15%
May you plead support.
305
00:16:23.820 --> 00:16:25.820 line:15%
My name is Patricia Keane Martins,
306
00:16:25.820 --> 00:16:27.096 line:15%
and I'm here on behalf of the Massachusetts Chapter
307
00:16:27.096 --> 00:16:31.070 line:15%
of the National Academy of Elder Law Attorneys,
308
00:16:31.070 --> 00:16:34.350 line:15%
the Real Estate bar, the Abstract Club, with a letter
309
00:16:34.350 --> 00:16:37.830 line:15%
of support from the Massachusetts Bar Association.
310
00:16:37.830 --> 00:16:40.230 line:15%
To answer the court's question as to whether
311
00:16:40.230 --> 00:16:42.730 line:15%
or not MassHealth is entitled to recover benefits
312
00:16:42.730 --> 00:16:45.600 line:15%
from a decedent's estate filed more than three years
313
00:16:45.600 --> 00:16:47.950 line:15%
after the decedent's death, including whether
314
00:16:47.950 --> 00:16:49.460 line:15%
or not the uniform probate code
315
00:16:49.460 --> 00:16:53.200 line:15%
section 190B, 3108 precludes such recovery.
316
00:16:53.200 --> 00:16:55.380 line:15%
Our collective answer is that the plain language
317
00:16:55.380 --> 00:16:58.120 line:15%
of 190B 3108 demonstrates
318
00:16:58.120 --> 00:17:00.020 line:15%
that it is an absolute extinguishment
319
00:17:00.020 --> 00:17:02.890 line:15%
of the authority conveyed to a personal representative,
320
00:17:02.890 --> 00:17:06.230 line:15%
and therefore does preclude recovery by MassHealth.
321
00:17:06.230 --> 00:17:09.820 line:15%
Further, 3803 with its reference to 118E,
322
00:17:09.820 --> 00:17:12.330 line:15%
does not create any exceptions or convey any additional
323
00:17:12.330 --> 00:17:14.720 line:15%
authority to the personal representative to act beyond
324
00:17:14.720 --> 00:17:16.780 line:15%
the three year extinguishment.
325
00:17:16.780 --> 00:17:18.920 line:15%
I had a whole speech prepared,
326
00:17:18.920 --> 00:17:20.780 line:15%
but I would like to address Attorney Fine,
327
00:17:20.780 --> 00:17:22.570 line:15%
did a masterful job walking through
328
00:17:22.570 --> 00:17:25.100 line:15%
the MassHealth process in the reasons that
329
00:17:25.100 --> 00:17:28.480 line:15%
this is a stature oppose and an absolute extinguishment
330
00:17:28.480 --> 00:17:31.100 line:15%
of authority conveyed to a personal representative.
331
00:17:31.100 --> 00:17:33.970 line:15%
I would like to add, that the court understand;
332
00:17:33.970 --> 00:17:37.180 line:15%
one, as Attorney Fine touched upon,
333
00:17:37.180 --> 00:17:39.510 line:15%
this class of people, are not people
334
00:17:39.510 --> 00:17:41.300 line:15%
that are rushing to attorneys.
335
00:17:41.300 --> 00:17:44.400 line:15%
And in addition, they often have exceptions.
336
00:17:44.400 --> 00:17:48.020 line:15%
Within the regulations there are exceptions and waivers
337
00:17:48.020 --> 00:17:50.360 line:15%
that these people are entitled to that they
338
00:17:50.360 --> 00:17:52.430 line:15%
may not even know that they have.
339
00:17:52.430 --> 00:17:54.930 line:15%
So what the legislature did is that they balances
340
00:17:54.930 --> 00:17:57.990 line:15%
as Attorney Fine said, the need of judiciary
341
00:17:57.990 --> 00:18:00.810 line:15%
to bring forward, right claims so that,
342
00:18:00.810 --> 00:18:03.950 line:15%
Real Estate bar is satisfied that the medical documents
343
00:18:03.950 --> 00:18:05.800 line:15%
don't have to be held on for 20 years.
344
00:18:05.800 --> 00:18:06.633 line:15%
Yeah, I get it.
345
00:18:06.633 --> 00:18:09.380 line:15%
I get your perspective.
346
00:18:09.380 --> 00:18:11.070 line:15%
I want you to step into the shoes
347
00:18:11.070 --> 00:18:16.070 line:15%
of the opposite side 'cause I get why Reber
348
00:18:16.700 --> 00:18:20.500 line:15%
and everybody else doesn't want certainty
349
00:18:20.500 --> 00:18:21.930 line:15%
and settled decisions.
350
00:18:21.930 --> 00:18:23.720 line:15%
Tell me how we protect the Commonwealth.
351
00:18:23.720 --> 00:18:26.490 line:15%
How does the Commonwealth protect itself?
352
00:18:26.490 --> 00:18:31.160 line:15%
If I'm on the opposite side, 'cause undisputed,
353
00:18:31.160 --> 00:18:33.740 line:15%
the Commonwealth is entitled to be compensated
354
00:18:33.740 --> 00:18:36.050 line:15%
for this money.
355
00:18:36.050 --> 00:18:37.840 line:15%
And if this were done properly,
356
00:18:37.840 --> 00:18:41.750 line:15%
the family not get the full benefit of this money.
357
00:18:41.750 --> 00:18:45.150 line:15%
Would be $108,000, whatever it is
358
00:18:45.150 --> 00:18:47.140 line:15%
would be given over to the state, right?
359
00:18:47.140 --> 00:18:48.140 line:15%
Or whatever that number is.
360
00:18:48.140 --> 00:18:51.300 line:15%
So, tell me how the state protects its interest
361
00:18:51.300 --> 00:18:55.293 line:15%
because I care that all of us are paying for this.
362
00:18:56.140 --> 00:18:58.433 line:15%
So tell me how the state protects itself.
363
00:19:00.394 --> 00:19:04.010 line:15%
This statute, in fact, encourages that.
364
00:19:04.010 --> 00:19:06.720 line:15%
The idea of the statute is for the Commonwealth
365
00:19:06.720 --> 00:19:09.440 line:15%
to step up for creditors to step up, because people
366
00:19:09.440 --> 00:19:11.760 line:15%
don't always do what they're supposed to.
367
00:19:11.760 --> 00:19:14.580 line:15%
So they have the ability to step up within a three year
368
00:19:14.580 --> 00:19:17.310 line:15%
period of time and file for a public administrator.
369
00:19:17.310 --> 00:19:21.730 line:15%
They also have a bunch of other advantages as a creditor,
370
00:19:21.730 --> 00:19:23.150 line:15%
as a sort of super creditor.
371
00:19:23.150 --> 00:19:25.100 line:15%
They have priorities of other creditors.
372
00:19:25.100 --> 00:19:27.960 line:15%
They have noticed provisions that other people don't have.
373
00:19:27.960 --> 00:19:31.390 line:15%
They have constructive and actual notice. So in some ways,
374
00:19:31.390 --> 00:19:33.870 line:15%
what they're asking this court to do is to fix an
375
00:19:33.870 --> 00:19:35.010 line:15%
administrative issue.
376
00:19:35.010 --> 00:19:37.290 line:15%
They just don't wanna to do it within a three year period
377
00:19:37.290 --> 00:19:39.970 line:15%
of time despite having note-
378
00:19:39.970 --> 00:19:44.970 line:15%
So this is basically inattentive or sloppy work on the
379
00:19:45.020 --> 00:19:50.020 line:15%
state is what produces this three year old time delay.
380
00:19:50.870 --> 00:19:52.274 line:15%
So I-
381
00:19:52.274 --> 00:19:55.800 line:15%
So I have less sympathy of the state can do it and doesn't
382
00:19:55.800 --> 00:19:57.340 line:15%
do its business than I do.
383
00:19:57.340 --> 00:19:59.653 line:15%
If the state is seeing gamed.
384
00:20:00.690 --> 00:20:01.523 line:15%
Tell me.
385
00:20:02.660 --> 00:20:04.910 line:15%
Is that, that we basically have a sloppy
386
00:20:04.910 --> 00:20:07.180 line:15%
state government that's not picking up.
387
00:20:08.240 --> 00:20:10.310 line:15%
I don't wanna say that, your honor.
388
00:20:10.310 --> 00:20:15.110 line:15%
They have the tools to move forward if they want to.
389
00:20:15.110 --> 00:20:17.410 line:15%
So whether or not it's sloppy, whether or not
390
00:20:17.410 --> 00:20:21.350 line:15%
they have other fish to fry, whether or not they just
391
00:20:21.350 --> 00:20:23.060 line:15%
don't get around to it.
392
00:20:23.060 --> 00:20:26.850 line:15%
That's not a question that I'm prepared to pose what I do-
393
00:20:26.850 --> 00:20:29.990 line:15%
They want the money in every case, right?
394
00:20:29.990 --> 00:20:31.580 line:15%
State government needs the money
395
00:20:31.580 --> 00:20:33.440 line:15%
and wants the money in every case.
396
00:20:33.440 --> 00:20:35.123 line:15%
So I'm just trying to understand,
397
00:20:35.980 --> 00:20:38.170 line:15%
it must be a lack of attention.
398
00:20:38.170 --> 00:20:40.960 line:15%
Then you're telling me, is that what you're saying?
399
00:20:40.960 --> 00:20:44.040 line:15%
They're not moving forward in a timely manner.
400
00:20:44.040 --> 00:20:48.370 line:15%
So they have every resource to do that.
401
00:20:48.370 --> 00:20:51.540 line:15%
But at some level, it is an administrative fix.
402
00:20:51.540 --> 00:20:54.520 line:15%
They have every opportunity to move forward in
403
00:20:54.520 --> 00:20:57.670 line:15%
a timely manner, which is three years, which is ample time.
404
00:20:57.670 --> 00:21:00.550 line:15%
It's two years more than you'd give your landscaper
405
00:21:00.550 --> 00:21:02.240 line:15%
that you owed money to who,
406
00:21:02.240 --> 00:21:04.550 line:15%
doesn't even have constructive notice, right?
407
00:21:04.550 --> 00:21:08.080 line:15%
So I don't want to besmart the Commonwealth.
408
00:21:08.080 --> 00:21:10.490 line:15%
Because I understand as you would ask me to,
409
00:21:10.490 --> 00:21:14.130 line:15%
that they have an interest in recovering this law and
410
00:21:14.130 --> 00:21:17.100 line:15%
the MUPC gives them that ability to recover within
411
00:21:17.100 --> 00:21:20.180 line:15%
a reasonable period of time, which is three years.
412
00:21:20.180 --> 00:21:22.840 line:15%
But after that, it has to close.
413
00:21:22.840 --> 00:21:23.680 line:15%
It has to be an end.
414
00:21:23.680 --> 00:21:25.490 line:15%
If no one brings it forward,
415
00:21:25.490 --> 00:21:28.370 line:15%
then for all the other interests that the legislature
416
00:21:28.370 --> 00:21:30.780 line:15%
had to meld together to come forward
417
00:21:30.780 --> 00:21:34.310 line:15%
with the MUPC that's the end.
418
00:21:34.310 --> 00:21:37.410 line:15%
Shell have no authority conveyed except for it
419
00:21:37.410 --> 00:21:41.430 line:15%
to confirm title or pay administration expenses.
420
00:21:41.430 --> 00:21:42.880 line:15%
Shell have no authority.
421
00:21:42.880 --> 00:21:44.170 line:15%
It is clear.
422
00:21:44.170 --> 00:21:45.003 line:15%
It is plain.
423
00:21:45.003 --> 00:21:46.300 line:15%
It is no exception.
424
00:21:46.300 --> 00:21:48.984 line:15%
It is the umbrella of all authority given.
425
00:21:48.984 --> 00:21:51.420 line:15%
803 does not convey authority.
426
00:21:51.420 --> 00:21:53.640 line:15%
118E does not convey authority.
427
00:21:53.640 --> 00:21:54.510 line:15%
It is clear.
428
00:21:54.510 --> 00:21:57.570 line:15%
It is there and they have ample time to move forward.
429
00:21:57.570 --> 00:22:00.530 line:15%
And if that means they need to tighten up their process,
430
00:22:00.530 --> 00:22:03.880 line:15%
then that is that what they need to do your honor.
431
00:22:03.880 --> 00:22:08.630 line:15%
So I appreciate your patience with my technical issues.
432
00:22:08.630 --> 00:22:09.680 line:15%
I am going over.
433
00:22:09.680 --> 00:22:12.340 line:15%
I would like to confirm that Amechi
434
00:22:12.340 --> 00:22:15.160 line:15%
does request that this court adopt the position
435
00:22:15.160 --> 00:22:17.670 line:15%
that's 3108, does in fact serve as
436
00:22:17.670 --> 00:22:19.350 line:15%
an absolute extinguishment
437
00:22:19.350 --> 00:22:22.530 line:15%
of all rights to be conveyed to the personal representative,
438
00:22:22.530 --> 00:22:26.230 line:15%
which would preclude predators, including MassHealth.
439
00:22:26.230 --> 00:22:27.530 line:15%
Thank you.
440
00:22:27.530 --> 00:22:29.070 line:15%
Thank you, Ms.Tean Martin.
441
00:22:29.070 --> 00:22:29.903 line:15%
Mr.Mark.
442
00:22:34.670 --> 00:22:36.090 line:15%
Thank you, your honors.
443
00:22:36.090 --> 00:22:38.810 line:15%
May it please the court, David Mark's Assistant
444
00:22:38.810 --> 00:22:41.193 line:15%
Attorney General for MassHealth.
445
00:22:43.980 --> 00:22:47.840 line:15%
As you well know, MassHealth is a program
446
00:22:47.840 --> 00:22:52.453 line:15%
of medical insurance for the truly, financially needy.
447
00:22:53.760 --> 00:22:58.090 line:15%
However, in determining eligibility for MassHealth,
448
00:22:58.090 --> 00:23:03.090 line:15%
one of the things both the federal and the state law provide
449
00:23:03.150 --> 00:23:08.150 line:15%
is that principle residences can be excluded from counting
450
00:23:09.460 --> 00:23:13.480 line:15%
of assets under a variety of circumstances.
451
00:23:13.480 --> 00:23:18.190 line:15%
Where the member intends to live in the primary residence
452
00:23:18.190 --> 00:23:20.460 line:15%
or returned to the primary residence
453
00:23:20.460 --> 00:23:21.730 line:15%
with a spouse.
454
00:23:21.730 --> 00:23:22.563 line:15%
Is living.
455
00:23:22.563 --> 00:23:26.890 line:15%
Lives at the residence where other individuals, children,
456
00:23:26.890 --> 00:23:29.350 line:15%
siblings might live in the residence.
457
00:23:29.350 --> 00:23:34.350 line:15%
And MassHealth allows a principal residence to be
458
00:23:36.220 --> 00:23:39.920 line:15%
excluded from the counting of assets up to
459
00:23:39.920 --> 00:23:44.370 line:15%
the value of over $800,000.
460
00:23:44.370 --> 00:23:47.840 line:15%
In other words, if someone owns a house worth
461
00:23:47.840 --> 00:23:52.690 line:15%
up to $800,000, that residence can be excluded
462
00:23:52.690 --> 00:23:54.294 line:15%
from the counting of assets.
463
00:23:54.294 --> 00:23:56.960 line:15%
Okay, maybe I'm missing the point Attorney Marks,
464
00:23:56.960 --> 00:24:01.960 line:15%
but whether it's $800, $500, $100
465
00:24:01.970 --> 00:24:04.890 line:15%
what relevance does that have if we're dealing
466
00:24:04.890 --> 00:24:07.140 line:15%
here with statute of limitations,
467
00:24:07.140 --> 00:24:11.140 line:15%
statute of repose and whether the agency
468
00:24:11.140 --> 00:24:15.880 line:15%
can find out if somebody has passed away easily enough
469
00:24:15.880 --> 00:24:17.700 line:15%
to assert their rights?
470
00:24:17.700 --> 00:24:18.730 line:15%
Yes.
471
00:24:18.730 --> 00:24:23.730 line:15%
So the point is that both federal and state law intend
472
00:24:25.690 --> 00:24:30.690 line:15%
that best health use a state recovery have in place
473
00:24:32.480 --> 00:24:36.700 line:15%
in the state recovery program and use it to pursue
474
00:24:36.700 --> 00:24:40.643 line:15%
a recovery of benefits paid under certain circumstances.
475
00:24:42.350 --> 00:24:47.350 line:15%
And the legislature in 190 B, section 3803
476
00:24:52.486 --> 00:24:57.220 line:15%
and 118 E sections 31 and 32 has set up
477
00:24:58.330 --> 00:25:03.330 line:15%
a very particular detailed thoughtful
478
00:25:04.520 --> 00:25:09.520 line:15%
program for enabling MassHealth to assert
479
00:25:10.020 --> 00:25:13.477 line:15%
its sustained recovery rights against probative States.
480
00:25:14.930 --> 00:25:19.930 line:15%
And so the argument that 190 B, 3108
481
00:25:26.500 --> 00:25:30.600 line:15%
that provides for this limitation on the powers
482
00:25:30.600 --> 00:25:32.710 line:15%
of a personal representative.
483
00:25:32.710 --> 00:25:36.763 line:15%
First States opened more than three years after the death.
484
00:25:39.060 --> 00:25:44.060 line:15%
Is a general statute and does not attend if you will,
485
00:25:45.730 --> 00:25:50.160 line:15%
MassHealth needs to protect its to state recovery.
486
00:25:50.160 --> 00:25:52.080 line:15%
Well, I understand that.
487
00:25:52.080 --> 00:25:55.110 line:15%
And I understand the specific language on a stat
488
00:25:55.110 --> 00:25:57.720 line:15%
in statutory interpretation in general language
489
00:25:57.720 --> 00:25:58.670 line:15%
and all of that.
490
00:25:58.670 --> 00:26:02.420 line:15%
But when I look at 190 B, section 3803
491
00:26:02.420 --> 00:26:05.653 line:15%
which sends me to one 118 E section 32,
492
00:26:06.490 --> 00:26:07.670 line:15%
there's two components.
493
00:26:07.670 --> 00:26:12.670 line:15%
And it doesn't seem that the MassHealth met
494
00:26:13.540 --> 00:26:14.710 line:15%
either one of them.
495
00:26:14.710 --> 00:26:17.110 line:15%
They weren't within four months of the appointment
496
00:26:17.110 --> 00:26:19.773 line:15%
and they weren't within a year of the death.
497
00:26:23.716 --> 00:26:28.020 line:15%
In this case, MassHealth presented its claim,
498
00:26:28.920 --> 00:26:32.590 line:15%
Well within four months of the approval,
499
00:26:32.590 --> 00:26:34.517 line:15%
of the personal representatives bond.
500
00:26:34.517 --> 00:26:35.350 line:15%
Okay.
501
00:26:35.350 --> 00:26:37.730 line:15%
In fact, in this case,
502
00:26:37.730 --> 00:26:39.930 line:15%
the personal representatives bond hasn't
503
00:26:39.930 --> 00:26:41.810 line:15%
even been approved yet.
504
00:26:41.810 --> 00:26:43.330 line:15%
So-
Okay.
505
00:26:43.330 --> 00:26:47.510 line:15%
In any event, the MassHealth is well within
506
00:26:47.510 --> 00:26:49.990 line:15%
the time frame there.
507
00:26:49.990 --> 00:26:50.823 line:15%
Okay.
508
00:26:50.823 --> 00:26:51.656 line:15%
So what is in-
509
00:26:51.656 --> 00:26:53.290 line:15%
Isn't there chaos.
510
00:26:53.290 --> 00:26:54.143 line:15%
If we don't.
511
00:26:56.276 --> 00:26:58.890 line:15%
You can enforce this within three years.
512
00:26:58.890 --> 00:27:03.450 line:15%
You have all kinds of ways of doing this.
513
00:27:03.450 --> 00:27:07.977 line:15%
If you proceed right in a timely way.
514
00:27:09.440 --> 00:27:12.410 line:15%
And if you wait indefinitely,
515
00:27:12.410 --> 00:27:15.080 line:15%
we're gonna to have a States passing.
516
00:27:15.080 --> 00:27:19.180 line:15%
We're gonna have people having transferred the property
517
00:27:19.180 --> 00:27:22.460 line:15%
to bribe to people who are outside of the family
518
00:27:22.460 --> 00:27:25.793 line:15%
and you're gonna be collecting, how is that all gonna work?
519
00:27:26.730 --> 00:27:30.300 line:15%
Isn't it up to you to act within three years?
520
00:27:30.300 --> 00:27:31.953 line:15%
What's so hard about that?
521
00:27:33.986 --> 00:27:38.986 line:15%
The legislature has specifically provided that MassHealth
522
00:27:40.950 --> 00:27:45.300 line:15%
has four months from the time of the approval
523
00:27:45.300 --> 00:27:47.493 line:15%
of the bond of the personal representative.
524
00:27:48.790 --> 00:27:49.670 line:15%
Why?
525
00:27:49.670 --> 00:27:53.790 line:15%
Because the legislature understands and anticipates
526
00:27:53.790 --> 00:27:58.790 line:15%
that MassHealth does not necessarily normally obtain notice
527
00:28:00.550 --> 00:28:01.383 line:15%
of the death.
528
00:28:03.008 --> 00:28:08.008 line:15%
The entire argument of the state is based on this assumption
529
00:28:09.680 --> 00:28:13.870 line:15%
that MassHealth gets notice of the death.
530
00:28:13.870 --> 00:28:18.870 line:15%
The problem is that this is not born out
531
00:28:18.970 --> 00:28:21.820 line:15%
in any facts or in any law.
532
00:28:21.820 --> 00:28:26.820 line:15%
There is no legal provision that provides MassHealth,
533
00:28:27.660 --> 00:28:32.660 line:15%
a way to learn of a death other than the notice provisions
534
00:28:33.283 --> 00:28:38.283 line:15%
in the probate code and in section 32 of 118.
535
00:28:38.460 --> 00:28:41.193 line:15%
So even though you're providing benefits.
536
00:28:42.670 --> 00:28:46.580 line:15%
Do dead people keep getting benefits for years
537
00:28:46.580 --> 00:28:49.040 line:15%
without you doing something to turn them off.
538
00:28:49.040 --> 00:28:51.193 line:15%
I assume the answer to that is no, right?
539
00:28:52.270 --> 00:28:56.680 line:15%
Rather, your honor, just because benefits stop,
540
00:28:56.680 --> 00:28:59.230 line:15%
does not mean that someone died.
541
00:28:59.230 --> 00:29:02.110 line:15%
And this is what the estate is saying.
542
00:29:02.110 --> 00:29:05.840 line:15%
MassHealth is automatically unnoticed that someone died
543
00:29:05.840 --> 00:29:07.620 line:15%
when benefits stop.
544
00:29:07.620 --> 00:29:09.423 line:15%
This is not necessarily the case.
545
00:29:10.380 --> 00:29:14.233 line:15%
For example, in Ms. Kendall's case,
546
00:29:16.170 --> 00:29:20.000 line:15%
she stopped receiving benefits because I assume she,
547
00:29:20.000 --> 00:29:23.800 line:15%
when possibility, is that she recovered.
548
00:29:23.800 --> 00:29:26.870 line:15%
She didn't need healthcare benefits.
549
00:29:26.870 --> 00:29:31.710 line:15%
Or, one could no longer be financially eligible.
550
00:29:31.710 --> 00:29:33.850 line:15%
In which case benefits would stop.
551
00:29:33.850 --> 00:29:36.600 line:15%
What is important to recognize is that
552
00:29:36.600 --> 00:29:41.600 line:15%
the legislature created an entire scheme that turns,
553
00:29:42.590 --> 00:29:46.940 line:15%
in great measure on notice to MassHealth
554
00:29:46.940 --> 00:29:51.460 line:15%
of the petition of the estate.
555
00:29:51.460 --> 00:29:53.310 line:15%
So lemme just probe for a second.
556
00:29:53.310 --> 00:29:54.710 line:15%
So the four month period,
557
00:29:54.710 --> 00:29:58.350 line:15%
I understand you met the four-month period, not a problem.
558
00:29:58.350 --> 00:29:59.400 line:15%
Why?
559
00:29:59.400 --> 00:30:03.680 line:15%
If that's the case, why is the Abstract Club and Reeb?
560
00:30:03.680 --> 00:30:05.263 line:15%
Why are they so upset?
561
00:30:09.803 --> 00:30:13.860 line:15%
Is the four month period of time enable preventing
562
00:30:13.860 --> 00:30:17.530 line:15%
this type of catastrophe where the States get transferred
563
00:30:17.530 --> 00:30:19.810 line:15%
and everything else because nothing's happened within
564
00:30:19.810 --> 00:30:21.350 line:15%
the four months?
565
00:30:21.350 --> 00:30:24.890 line:15%
Is that why there's not a downside to going your way?
566
00:30:24.890 --> 00:30:25.723 line:15%
Is that clear?
567
00:30:25.723 --> 00:30:27.430 line:15%
I'ma try express that very clearly.
568
00:30:28.470 --> 00:30:30.917 line:15%
I'm gonna to answer whatever question I heard you ask
569
00:30:30.917 --> 00:30:31.775 line:15%
your honor.
570
00:30:31.775 --> 00:30:34.850 line:15%
(indistinct)
(laughing)
571
00:30:34.850 --> 00:30:39.850 line:15%
There is no question that the four-month period protects
572
00:30:40.020 --> 00:30:45.020 line:15%
MassHealth from an intentional delay in probating estates.
573
00:30:48.740 --> 00:30:50.060 line:15%
There is no question-
574
00:30:50.060 --> 00:30:52.370 line:15%
I understand.
I'm trying to ask you to look.
575
00:30:52.370 --> 00:30:54.300 line:15%
The same question that I was asking your sisters.
576
00:30:54.300 --> 00:30:57.530 line:15%
I want you to look from the other side of the V
577
00:30:57.530 --> 00:31:00.580 line:15%
for a second and tell me why they're protected.
578
00:31:00.580 --> 00:31:04.093 line:15%
Does the four month period mean that we're not gonna have,
579
00:31:05.850 --> 00:31:08.670 line:15%
40 years later, after an estate
580
00:31:08.670 --> 00:31:09.800 line:15%
has been transferred, or whatever.
581
00:31:09.800 --> 00:31:11.010 line:15%
Are they protected?
582
00:31:11.010 --> 00:31:14.090 line:15%
Are they overreacting because their interests
583
00:31:14.090 --> 00:31:15.500 line:15%
are protected by the fact that you
584
00:31:15.500 --> 00:31:18.610 line:15%
have to act within four months from the appointment
585
00:31:18.610 --> 00:31:21.563 line:15%
of the bond of the personal representative.
586
00:31:25.510 --> 00:31:28.810 line:15%
The problem is this assumption that
587
00:31:28.810 --> 00:31:32.080 line:15%
if the three year period doesn't apply to MassHealth,
588
00:31:32.080 --> 00:31:33.630 line:15%
then MassHealth will come running
589
00:31:33.630 --> 00:31:38.252 line:15%
in 20 years later and grab some assets.
590
00:31:38.252 --> 00:31:40.580 line:15%
It doesn't make any sense because
591
00:31:45.320 --> 00:31:48.320 line:15%
if the four month period runs from
592
00:31:48.320 --> 00:31:51.493 line:15%
the petition for a probate estate,
593
00:31:52.620 --> 00:31:57.620 line:15%
then whenever that happens and sometimes heirs wait.
594
00:31:58.413 --> 00:31:59.246 line:15%
They do that.
595
00:31:59.246 --> 00:32:02.000 line:15%
Or there's some conflict within a family.
596
00:32:02.000 --> 00:32:04.730 line:15%
Whatever the reason people wait
597
00:32:04.730 --> 00:32:06.253 line:15%
to probate and state.
598
00:32:07.785 --> 00:32:10.290 line:15%
Once they do and MassHealth has given notice
599
00:32:10.290 --> 00:32:12.030 line:15%
that four month period is running.
600
00:32:12.030 --> 00:32:15.900 line:15%
So again, so all these real estate lawyers
601
00:32:15.900 --> 00:32:19.600 line:15%
and trust estate lawyers, they're all overreacting.
602
00:32:19.600 --> 00:32:20.600 line:15%
I'm just trying.
Again.
603
00:32:20.600 --> 00:32:22.900 line:15%
I'm trying to put you in the shoes of the opposite side.
604
00:32:22.900 --> 00:32:26.080 line:15%
So I understand that they're exaggerating
605
00:32:26.080 --> 00:32:28.910 line:15%
the problems that are caused because basically
606
00:32:28.910 --> 00:32:32.090 line:15%
this is a frozen estate nothing's happened.
607
00:32:32.090 --> 00:32:33.950 line:15%
It can go on for years and years and years,
608
00:32:33.950 --> 00:32:36.620 line:15%
but it's frozen in the family somehow.
609
00:32:36.620 --> 00:32:40.463 line:15%
And that four-month period means that nothing.
610
00:32:41.400 --> 00:32:43.230 line:15%
People besides the family aren't going
611
00:32:43.230 --> 00:32:45.290 line:15%
to be victimized by this.
612
00:32:45.290 --> 00:32:46.260 line:15%
Is that correct?
613
00:32:46.260 --> 00:32:48.810 line:15%
I'm just trying to make sure I understand it.
614
00:32:48.810 --> 00:32:49.643 line:15%
Well
615
00:32:49.643 --> 00:32:50.476 line:15%
I feel like both sides aren't giving me
616
00:32:50.476 --> 00:32:53.280 line:15%
the other perspective, which is normal,
617
00:32:53.280 --> 00:32:54.630 line:15%
but go ahead.
618
00:32:54.630 --> 00:32:59.630 line:15%
Well, there is no question that, this is part
619
00:32:59.696 --> 00:33:04.696 line:15%
of the situation with what's remaining
620
00:33:05.550 --> 00:33:08.320 line:15%
in the estate, in the case of MassHealth members.
621
00:33:08.320 --> 00:33:12.580 line:15%
It is typically just the primary residence
622
00:33:12.580 --> 00:33:14.983 line:15%
that someone has been living in.
623
00:33:16.290 --> 00:33:20.820 line:15%
There is no incentive to probate an estate simply
624
00:33:20.820 --> 00:33:25.280 line:15%
to deal with that residence if people are happy
625
00:33:25.280 --> 00:33:27.240 line:15%
to continue to live in it.
626
00:33:27.240 --> 00:33:32.240 line:15%
In this case, the residence was rented out during
627
00:33:33.140 --> 00:33:35.190 line:15%
this three year time period.
628
00:33:35.190 --> 00:33:37.460 line:15%
The point is that, yes.
629
00:33:37.460 --> 00:33:42.460 line:15%
It is true that if the heirs take no steps to probate
630
00:33:44.160 --> 00:33:48.210 line:15%
an estate, and if MassHealth does not learn
631
00:33:48.210 --> 00:33:51.270 line:15%
of a death, which it may not.
632
00:33:51.270 --> 00:33:54.210 line:15%
There is no established way for MassHealth
633
00:33:54.210 --> 00:33:56.420 line:15%
to learn of deaths.
634
00:33:56.420 --> 00:33:58.040 line:15%
Then.
635
00:33:58.040 --> 00:33:58.873 line:15%
Yes.
636
00:33:58.873 --> 00:34:01.500 line:15%
This could go on for years and years and years.
637
00:34:01.500 --> 00:34:03.890 line:15%
No estate is opened.
638
00:34:03.890 --> 00:34:06.730 line:15%
MassHealth doesn't learn of the death and people
639
00:34:06.730 --> 00:34:11.290 line:15%
are living in the house or renting the house without having
640
00:34:11.290 --> 00:34:13.480 line:15%
a personal representative appointed.
641
00:34:13.480 --> 00:34:14.313 line:15%
Right.
642
00:34:14.313 --> 00:34:15.510 line:15%
And you're saying.
643
00:34:15.510 --> 00:34:17.660 line:15%
I just want to finish one last question just to make sure I
644
00:34:17.660 --> 00:34:18.493 line:15%
fully grasp.
645
00:34:18.493 --> 00:34:22.560 line:15%
And you're saying, that we shouldn't be concerned
646
00:34:22.560 --> 00:34:27.173 line:15%
because the family whose delayed this probating
647
00:34:28.410 --> 00:34:32.760 line:15%
and taking advantage of it are the only people affected
648
00:34:32.760 --> 00:34:35.830 line:15%
by your delayed pursuit of this.
649
00:34:35.830 --> 00:34:39.190 line:15%
We're not gonna to have innocent third party victims
650
00:34:39.190 --> 00:34:41.960 line:15%
who bought the house or anything like that.
651
00:34:41.960 --> 00:34:43.130 line:15%
That won't be the case.
652
00:34:43.130 --> 00:34:46.180 line:15%
It's just the family who's manipulated
653
00:34:46.180 --> 00:34:51.180 line:15%
the process that recovery will be taken from.
654
00:34:51.500 --> 00:34:52.500 line:15%
Is that your argument?
655
00:34:52.500 --> 00:34:54.023 line:15%
Or am I overstating it?
656
00:34:55.020 --> 00:34:57.300 line:15%
Well, yes and no.
657
00:34:57.300 --> 00:35:00.110 line:15%
I don't think you're overstanding it but,
658
00:35:00.110 --> 00:35:03.530 line:15%
and this is one of the funny things about adapting
659
00:35:03.530 --> 00:35:06.180 line:15%
the estates argument here.
660
00:35:06.180 --> 00:35:09.180 line:15%
There is a provision right up front
661
00:35:09.180 --> 00:35:12.980 line:15%
in 118 E section 32, that says that if
662
00:35:15.370 --> 00:35:17.790 line:15%
an estate does not give notice
663
00:35:21.297 --> 00:35:22.130 line:15%
to MassHealth and the property is transferred.
664
00:35:27.940 --> 00:35:31.940 line:15%
That MassHealth has the right to go after that property
665
00:35:32.950 --> 00:35:35.773 line:15%
in the hands of the transferee.
666
00:35:37.720 --> 00:35:40.740 line:15%
Without regard to the date that
667
00:35:40.740 --> 00:35:43.220 line:15%
the probate estate was opened.
668
00:35:43.220 --> 00:35:45.110 line:15%
Could be years and years and years.
669
00:35:45.110 --> 00:35:47.270 line:15%
Isn't that the problem now?
670
00:35:47.270 --> 00:35:48.330 line:15%
I'm sorry your honor?
671
00:35:48.330 --> 00:35:50.500 line:15%
Isn't that the problem that you could
672
00:35:50.500 --> 00:35:55.500 line:15%
have an unwary buyer of the property and then all
673
00:35:56.860 --> 00:36:00.450 line:15%
of a sudden have MassHealth come after that person.
674
00:36:00.450 --> 00:36:02.661 line:15%
I guess my question to you is I understand that she said
675
00:36:02.661 --> 00:36:06.820 line:15%
that there's no mechanism right now for MassHealth
676
00:36:06.820 --> 00:36:11.460 line:15%
to be notified of the death of somebody
677
00:36:11.460 --> 00:36:13.100 line:15%
who's getting benefits.
678
00:36:13.100 --> 00:36:15.883 line:15%
But isn't that easily remedied?
679
00:36:19.099 --> 00:36:21.249 line:15%
Isn't there there a way for that to happen?
680
00:36:22.760 --> 00:36:24.910 line:15%
Without regard to whether there's a way
681
00:36:24.910 --> 00:36:26.240 line:15%
for that to happen.
682
00:36:26.240 --> 00:36:31.170 line:15%
That is not what the legislature intended or expected.
683
00:36:31.170 --> 00:36:32.193 line:15%
The legislature-
684
00:36:33.360 --> 00:36:36.870 line:15%
That's not what your sisters say.
685
00:36:36.870 --> 00:36:40.783 line:15%
That's they say that you have the opportunity,
686
00:36:43.247 --> 00:36:47.430 line:15%
MassHealth has the opportunity to get what it is owed,
687
00:36:47.430 --> 00:36:49.850 line:15%
and after a period of time, we have to close
688
00:36:49.850 --> 00:36:52.970 line:15%
the window because otherwise people are exposed.
689
00:36:52.970 --> 00:36:56.410 line:15%
You have to have an end to the process at some point.
690
00:36:56.410 --> 00:37:00.990 line:15%
But according to filings that MassHealth
691
00:37:03.010 --> 00:37:07.030 line:15%
has made with the legislature.
692
00:37:07.030 --> 00:37:12.030 line:15%
In 2018, for example, there were over 1.8 million members
693
00:37:13.796 --> 00:37:14.629 line:15%
of MassHealth.
694
00:37:17.200 --> 00:37:21.610 line:15%
There is no organized way for MassHealth to constantly
695
00:37:21.610 --> 00:37:26.280 line:15%
surveil it's 1.8 million members to determine when
696
00:37:26.280 --> 00:37:27.873 line:15%
and if someone has died.
697
00:37:29.380 --> 00:37:32.510 line:15%
And the legislature recognizes that.
698
00:37:32.510 --> 00:37:36.740 line:15%
The legislature has used the trigger
699
00:37:36.740 --> 00:37:41.050 line:15%
for the timeframe within which MassHealth must pursue
700
00:37:41.050 --> 00:37:43.060 line:15%
a claim present the claim.
701
00:37:43.060 --> 00:37:48.060 line:15%
And that trigger is notice from the opening of the estate.
702
00:37:50.440 --> 00:37:54.010 line:15%
I have one question, if that answered
703
00:37:54.010 --> 00:37:55.580 line:15%
your question, Justice Budd.
704
00:37:55.580 --> 00:37:56.770 line:15%
Yep!
705
00:37:56.770 --> 00:38:00.950 line:15%
Counsel, if I look at 190 section.
706
00:38:02.370 --> 00:38:03.270 line:15%
Is it 190?
Yes.
707
00:38:03.270 --> 00:38:08.270 line:15%
Section 118 E section 32 and section i sub i says
708
00:38:10.800 --> 00:38:15.360 line:15%
that F if there's been a year after the death,
709
00:38:15.360 --> 00:38:18.050 line:15%
you have authority to designate a public MassHealth
710
00:38:18.050 --> 00:38:21.280 line:15%
has an authority to designate a public administrator.
711
00:38:21.280 --> 00:38:23.060 line:15%
That suggest also to me,
712
00:38:23.060 --> 00:38:26.500 line:15%
that they're contemplating in this some kind of end,
713
00:38:26.500 --> 00:38:30.920 line:15%
or some kind of limitation on MassHealth's ability
714
00:38:30.920 --> 00:38:32.783 line:15%
to just come in at any point.
715
00:38:35.300 --> 00:38:40.300 line:15%
The MassHealth's ability or authority to request
716
00:38:41.290 --> 00:38:45.430 line:15%
the appointment of a public administrator, depends
717
00:38:45.430 --> 00:38:48.430 line:15%
on its learning of the death.
718
00:38:48.430 --> 00:38:53.130 line:15%
And the legislature has constructed this scheme with the
719
00:38:53.130 --> 00:38:58.130 line:15%
recognition that MassHealth might not learn of the death.
720
00:38:59.370 --> 00:39:04.370 line:15%
And so it has created a separate alternative time limit
721
00:39:05.910 --> 00:39:09.120 line:15%
for MassHealth to pursue its claim, four months!
722
00:39:09.120 --> 00:39:14.120 line:15%
Very short, but from the time of the opening of an estate.
723
00:39:14.930 --> 00:39:16.040 line:15%
Why?
724
00:39:16.040 --> 00:39:20.970 line:15%
Because the way the law provides MassHealth will learn of
725
00:39:20.970 --> 00:39:25.970 line:15%
its opportunity to recover on an estate is by getting notice
726
00:39:26.720 --> 00:39:28.770 line:15%
of the opening of an estate.
727
00:39:28.770 --> 00:39:32.260 line:15%
Not necessarily by learning of a death.
728
00:39:32.260 --> 00:39:36.270 line:15%
MassHealth may learn of a death, and it has the right
729
00:39:36.270 --> 00:39:41.190 line:15%
to protect itself by using a public administrator.
730
00:39:41.190 --> 00:39:45.970 line:15%
But, the legislature itself has understood
731
00:39:47.673 --> 00:39:52.130 line:15%
that the time limits that apply to MassHealth cannot turn
732
00:39:53.420 --> 00:39:56.130 line:15%
on the date of the death.
733
00:39:56.130 --> 00:40:01.130 line:15%
Because otherwise clever estate planning attorneys
734
00:40:01.460 --> 00:40:05.250 line:15%
would advise their clients who are living
735
00:40:05.250 --> 00:40:07.880 line:15%
in the house, or renting the house,
736
00:40:07.880 --> 00:40:10.830 line:15%
to simply wait three years,
737
00:40:10.830 --> 00:40:15.210 line:15%
and by doing so would then defeat MassHealth's ability
738
00:40:15.210 --> 00:40:16.663 line:15%
to seek estate recovery.
739
00:40:17.958 --> 00:40:22.900 line:15%
And that is the problem with reading or with failing
740
00:40:22.900 --> 00:40:27.900 line:15%
to read 803 F and 118 section 32,
741
00:40:29.490 --> 00:40:34.490 line:15%
as providing a separate timeframe for MassHealth to assert
742
00:40:35.620 --> 00:40:37.740 line:15%
its estate recovery efforts.
743
00:40:37.740 --> 00:40:39.840 line:15%
I believe Justice Lowy has a question?
744
00:40:39.840 --> 00:40:40.680 line:15%
Yeah.
Quickly.
745
00:40:40.680 --> 00:40:42.710 line:15%
Thank you, justice Casiano.
746
00:40:42.710 --> 00:40:47.140 line:15%
So, this sounds a lot like a public policy discussion rather
747
00:40:47.140 --> 00:40:50.447 line:15%
than a statutory interpretation discussion.
748
00:40:50.447 --> 00:40:53.870 line:15%
But as a matter of statutory interpretation,
749
00:40:53.870 --> 00:40:56.180 line:15%
you put all your eggs into the argument
750
00:40:56.180 --> 00:41:00.600 line:15%
that 803 F is more specific than 1084.
751
00:41:00.600 --> 00:41:03.726 line:15%
And the problem with that is that
752
00:41:03.726 --> 00:41:08.726 line:15%
you can't reconcile them both existing,
753
00:41:08.810 --> 00:41:11.260 line:15%
but you can reconcile them both existing.
754
00:41:11.260 --> 00:41:16.260 line:15%
803 F is a specific provision that gives you not just
755
00:41:18.090 --> 00:41:23.090 line:15%
a year, but three years and within four months
756
00:41:23.110 --> 00:41:25.440 line:15%
of the personal representative being appointed
757
00:41:25.440 --> 00:41:30.440 line:15%
and 1084 says okay, but it's a hard three years
758
00:41:32.350 --> 00:41:35.542 line:15%
because it's statute of repose.
759
00:41:35.542 --> 00:41:38.320 line:15%
Those statutes can be reconciled.
760
00:41:38.320 --> 00:41:41.035 line:15%
They can be reconciled by giving additional time
761
00:41:41.035 --> 00:41:42.920 line:15%
to MassHealth.
762
00:41:44.690 --> 00:41:48.200 line:15%
So which is more specific and which is more general,
763
00:41:48.200 --> 00:41:49.910 line:15%
it doesn't help you as a matter
764
00:41:49.910 --> 00:41:51.650 line:15%
of legislative interpretation.
765
00:41:51.650 --> 00:41:54.750 line:15%
You might make a very compelling argument
766
00:41:54.750 --> 00:41:56.200 line:15%
that you need to have noticed.
767
00:41:56.200 --> 00:41:59.090 line:15%
By the way, you could have noticed by only not looking
768
00:41:59.090 --> 00:42:02.120 line:15%
at 1.8 million people, but looking at the people who
769
00:42:02.120 --> 00:42:03.233 line:15%
have stopped benefits.
770
00:42:04.330 --> 00:42:05.703 line:15%
But putting notice aside,
771
00:42:07.461 --> 00:42:09.420 line:15%
the problem with your argument is that it
772
00:42:09.420 --> 00:42:13.510 line:15%
can reconcile both statutes provisions in the statute.
773
00:42:13.510 --> 00:42:15.483 line:15%
So we don't get into general and stuff.
774
00:42:16.440 --> 00:42:21.440 line:15%
Well, here's one way in which you can't reconcile them
775
00:42:21.824 --> 00:42:26.210 line:15%
because as you say, to read
776
00:42:26.210 --> 00:42:30.330 line:15%
the three-year late unlimited provision as applying
777
00:42:30.330 --> 00:42:35.220 line:15%
to MassHealth, that means that MassHealth ability
778
00:42:36.240 --> 00:42:41.040 line:15%
to pursue a state recovery four months after the approval
779
00:42:41.040 --> 00:42:44.840 line:15%
of the bond is destroyed in those cases
780
00:42:44.840 --> 00:42:48.300 line:15%
in which the estate has not been opened within three years.
781
00:42:48.300 --> 00:42:53.300 line:15%
So it totally renders that part of section 32 a nullity.
782
00:42:55.830 --> 00:43:00.830 line:15%
It also renders the requirement to give notice itself
783
00:43:02.380 --> 00:43:04.070 line:15%
a sort of an absurdity.
784
00:43:04.070 --> 00:43:09.070 line:15%
In other words, the statute requires the statutes.
785
00:43:09.990 --> 00:43:10.880 line:15%
Plural.
786
00:43:10.880 --> 00:43:14.253 line:15%
Require that in every estate,
787
00:43:15.220 --> 00:43:17.370 line:15%
in which there's a petition for the administration
788
00:43:17.370 --> 00:43:21.310 line:15%
of a state notice is given to MassHealth.
789
00:43:21.310 --> 00:43:25.340 line:15%
Every single estate in Massachusetts, notice is given
790
00:43:25.340 --> 00:43:27.683 line:15%
to MassHealth by certified mail.
791
00:43:28.670 --> 00:43:32.550 line:15%
However, the upshot of the state's argument here
792
00:43:32.550 --> 00:43:37.550 line:15%
is that, for every estate that is a petition
793
00:43:38.120 --> 00:43:40.520 line:15%
to be opened more than three years after
794
00:43:40.520 --> 00:43:44.313 line:15%
the death, that notice is pointless.
795
00:43:45.330 --> 00:43:47.180 line:15%
It is a wasted effort.
796
00:43:47.180 --> 00:43:48.863 line:15%
It is a waste of money.
797
00:43:50.580 --> 00:43:52.673 line:15%
But the law requires it anyway.
798
00:43:54.090 --> 00:43:54.923 line:15%
Why?
799
00:43:55.760 --> 00:43:57.840 line:15%
MassHealth gets a notice three years after the death
800
00:43:57.840 --> 00:44:00.030 line:15%
and says, "Oh, isn't that nice to know of."
801
00:44:00.030 --> 00:44:01.620 line:15%
Throw that in the garbage.
802
00:44:01.620 --> 00:44:03.060 line:15%
This is the problem.
803
00:44:03.060 --> 00:44:07.930 line:15%
The problem is, the legislature has created an entire
804
00:44:07.930 --> 00:44:12.930 line:15%
specific provision scheme for protecting
805
00:44:14.020 --> 00:44:16.380 line:15%
MassHealth estate recovery efforts
806
00:44:16.380 --> 00:44:18.540 line:15%
and this general language.
807
00:44:18.540 --> 00:44:20.760 line:15%
There's nothing specific about 803
808
00:44:22.308 --> 00:44:23.630 line:15%
(indistinct)
809
00:44:23.630 --> 00:44:24.479 line:15%
Sorry.
810
00:44:24.479 --> 00:44:25.561 line:15%
(chuckling)
Three.
811
00:44:25.561 --> 00:44:29.960 line:15%
1084 there's nothing specific about it.
812
00:44:29.960 --> 00:44:34.720 line:15%
It just states, "personal representatives has limited powers
813
00:44:35.660 --> 00:44:37.410 line:15%
after three years after the death."
814
00:44:38.590 --> 00:44:43.590 line:15%
There is no reason to believe that the legislature intended
815
00:44:43.590 --> 00:44:48.590 line:15%
that provision to specifically cut off MassHealth's rights
816
00:44:50.950 --> 00:44:55.690 line:15%
when it in very specific terms, went out of its way
817
00:44:55.690 --> 00:44:59.953 line:15%
to protect MassHealth's rights in all kinds of other ways.
818
00:45:01.750 --> 00:45:02.743 line:15%
This argument-
819
00:45:03.767 --> 00:45:05.450 line:15%
You may have answered the question.
820
00:45:05.450 --> 00:45:07.630 line:15%
Is that satisfactory Justice Lowy?
821
00:45:07.630 --> 00:45:08.463 line:15%
Yes.
822
00:45:08.463 --> 00:45:09.537 line:15%
Thank you very much, Justice Gaziano.
823
00:45:09.537 --> 00:45:11.711 line:15%
Any further questions of Mr. Marks.
824
00:45:11.711 --> 00:45:13.288 line:15%
No, Thank you.
All right.
825
00:45:13.288 --> 00:45:14.535 line:15%
Thank you Mr.Marks.
826
00:45:14.535 --> 00:45:15.370 line:15%
Thank you your honors.
827
00:45:15.370 --> 00:45:16.623 line:15%
I would rest on my brief.
828
00:45:18.200 --> 00:45:21.060 line:15%
So we'll take a five minute break
829
00:45:21.060 --> 00:45:23.673 line:15%
while Cole Keneally sets up the next case.